Blaha, Billy Jo v. Sauk County et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BILLY JO BLAHA,
Plaintiff,
v.
SAUK COUNTY and BLAKE ZIBELL,
Defendants.
OPINION and ORDER
24-cv-834-jdp
Defendant Blake Zibell, a deputy with the Sauk County Sheriff’s Office, arrested
plaintiff Billy Jo Blaha for operating a motor vehicle while under the influence of alcohol. Blaha
was transported to the Sauk County Jail, where Zibell ordered a paramedic to draw her blood.
Blaha doesn’t contest the arrest, but she contends that she did not consent to the blood draw,
which violated her rights under the Fourth Amendment.
Defendants move for summary judgment. Dkt. 15. The key factual issue is whether
Blaha consented to the blood draw. As explained below, the summary judgment evidence is
messy, but the bottom line is that Blaha has adduced admissible evidence that she did not
consent to the blood draw, so her consent is genuinely disputed. Zibell asserts qualified
immunity, but the qualified immunity issue rises and falls with the factual dispute. If Zibell
ordered the blood draw without Blaha’s consent, he violated her clearly established Fourth
Amendment rights. The court will deny defendants’ motion for summary judgment for Zibell.
Defendants also contend that Sauk County is not a proper defendant because there is
no private right of action for indemnification under Wis. Stat. § 895.46. See Dkt. 16, at 10–11.
But this court has held that “it is appropriate and efficient to keep the county as a defendant
in the case for the purpose of ordering complete relief.” Murphy v. Juneau Cnty., No. 22-cv-33-
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jdp, 2023 WL 3040649, at *7 (W.D. Wis. Apr. 21, 2023) (collecting cases). The court will
take the same approach here and deny the motion for summary judgment for Sauk County.
BACKGROUND
The following facts are undisputed except where noted.
Defendant Blake Zibell, a deputy with the Sauk County Sheriff’s Office, pulled over
plaintiff Billy Jo Blaha after she failed to stop at a stop sign. Zibell smelled alcohol coming from
inside Blaha’s vehicle. Zibell asked Blaha to step out of her vehicle, and she agreed to field
sobriety testing. Blaha also agreed to provide a preliminary breath test, which showed that she
had a blood alcohol content of 0.173. Zibell arrested Blaha for operating a motor vehicle while
under the influence of alcohol.
After arresting Blaha, Zibell read to her Wisconsin’s “Informing the Accused” form, part
of the state’s implied consent law. Per county practice, Zibell recorded audio of the interaction
on his phone. After the form was read, Blaha and Zibell talked about whether she would
consent to a blood draw. Blaha said that she did not consent to a blood draw.
Defendants concede that it is genuinely disputed whether Blaha gave Zibell her consent
to conduct a blood draw sometime after the recording. See Dkt. 25, at 7 n.1 (“A factual dispute
exists over whether Blaha consented to the blood draw in the squad car to Deputy Zibell after
the recording, but for the purposes of Defendants’ motion, the dispute is immaterial.”).
Zibell transported Blaha to the Sauk County Jail for processing. There, without
obtaining a warrant, Zibell ordered a paramedic, Rick Sherman, to draw Blaha’s blood.
Defendants contend that Blaha gave verbal consent to Sherman to conduct a blood draw; Blaha
denies doing so.
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The court will discuss additional facts as they become relevant to the analysis.
ANALYSIS
The Fourth Amendment generally requires a law enforcement officer to obtain a warrant
before conducting a blood draw. See Birchfield v. North Dakota, 579 U.S. 438, 455–56 (2016).
When, as here, an officer proceeds without a warrant, a blood draw is reasonable only if it falls
within a recognized exception to the Fourth Amendment’s warrant requirement. See Missouri
v. McNeely, 569 U.S. 141, 148 (2013); Petersen v. Pedersen, 140 F.4th 421, 428 (7th Cir. 2025).
The exception at issue in this case is consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219,
222 (1973); United States v. Ahmad, 21 F.4th 475, 478 (7th Cir. 2021).
Defendants move for summary judgment, Dkt. 15, contending that the blood draw was
lawful because Blaha consented to Sherman’s request to draw her blood, see Dkt. 16, at 4–7.
The court will grant defendants’ summary judgment motion only if they show that there is no
genuine dispute as to any material fact and that they are entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The court must deny the motion if a reasonable jury could return a
verdict in Blaha’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court
considers the facts in the light most favorable to Blaha and construes all reasonable inferences
from those facts in her favor. See Signal Funding, LLC v. Sugar Felsenthal Grais & Helsinger LLP,
136 F.4th 718, 726 (7th Cir. 2025).
A. Defendants’ contention that Blaha gave Sherman consent to draw her blood is not
supported by admissible evidence
Defendants propose as an undisputed fact that: “Prior to conducting the blood draw,
Blaha gave verbal consent for the blood draw directly to Paramedic Sherman.” Dkt. 25, ¶ 35.
Blaha disputes the proposed fact. But defendants contend that because Blaha can’t remember
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her conversation with Sherman, she has no evidence to support her version of the facts,
and thus the dispute is not genuine. But defendants’ own evidence doesn’t support the
proposed fact.
Defendants rely on Sherman’s declaration to support their contention that Blaha gave
Sherman consent to draw her blood. There, Sherman states:
Prior to conducting the blood draw, Billy Jo Blaha gave verbal
consent to the blood draw which is reflected in the Billing Report
for Incident 21-3846.
Dkt. 19, ¶ 8. The Billing Report indicates:
Per the officer the subject was read the “informing the accused.”
The subject then gave verbal consent to draw blood.
Id., Ex. 1, at 1. Sherman’s declaration is equivocal. It does not say that Blaha gave verbal
consent directly to Sherman. It does not explain how he knows that Blaha consented to a blood
test. The most reasonable inference from Sherman’s declaration and supporting exhibit is that
Sherman relied on a representation by Zibell that Blaha consented to the blood draw. Under
that reading, Sherman’s declaration is based on hearsay and lacks a personal foundation of
knowledge. Defendants cannot establish that a fact is undisputed with evidence that would be
inadmissible at trial.
Defendants contend that Blaha cannot genuinely dispute whether she gave verbal
consent to Sherman because she does not recall talking with him. See Dkt. 27, at 2 (citing
Dkt. 26, ¶ 13).1 Defendants argue that Blaha is manufacturing a factual dispute through
1 During her deposition, Blaha testified that she was drugged and raped hours before she was
arrested, which might account for her spotty memory. See Dkt. 13 (Blaha Dep. 17–34).
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speculation rather than admissible evidence. See Dkt. 26, ¶ 13. They cite testimony from
Blaha’s deposition to support their argument:
Q: Do you recall having any sort of conversation with [Sherman]?
A: Do you have something to refresh my memory by? I mean --
Q: No. I’m just asking if you have any recollection of having a
conversation with [Sherman].
A: No, not -- no. If I did, I mean if I would have had a conversation
with the EMT and she would have asked me or anybody asked
me to take my blood, I probably would have said no because I
don’t like needles for one.
. . .
Q: Do you remember whether or not you were asked whether or
not you would consent to the blood draw by [Sherman]?
A: If she would have asked me if I would have consented, I would
have said no.
Q: Okay. But do you recall specifically being asked?
A: No. All I remember is being told that I had to.
Dkt. 13 (Blaha Dep. 34:18–35:18). Defendants argue that “[a] hypothetical answer untethered
from memory cannot create a genuine issue of material fact.” Dkt. 26, ¶ 13.
Blaha’s testimony is somewhat equivocal, but read fairly, she concedes that she has at
most limited memory of her conversation with Sherman. Blaha might not recall talking with
Sherman, but she has other admissible evidence supporting her position that she did
not consent.
B. Blaha’s evidentiary support for her position that she did not consent
Viewing the evidence relating to whether Blaha consented to the blood draw as whole,
Blaha has evidentiary support for her position that she did not consent to the blood draw. The
court highlights three sets of evidence.
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First, there’s her initial conversation with Zibell. After Zibell arrested Blaha, he put her
in his squad car and read to her the “Informing the Accused” form, which includes the question
“Will you submit to an evidentiary chemical test of your blood?” followed by a space for the
accused’s response of “Yes” or “No.” Dkt. 18, Ex. 3 (emphasis omitted). After Zibell read Blaha
the form, they discussed whether Blaha would consent to a blood draw. In the audio recording
of Zibell and Blaha’s conversation after he read her the form, Blaha told Zibell “she did not
want to submit to a blood test because she isn’t a needle person,” Dkt. 26, ¶ 5, and “I don’t
wanna do needles,” id., ¶ 7. When Zibell asked whether she would submit to a blood draw,
Blaha responded: “No.” Id., ¶ 10. A reasonable jury could infer that Blaha said “no” and stuck
to her guns, despite her foggy memory of the subsequent conversation with Sherman.
Second, Zibell’s evidence is contradictory. Zibell did not indicate whether Blaha
consented to the blood draw on the “Informing the Accused” form, which he signed at
3:58 AM. See Dkt. 18, Ex. 3. Yet Zibell’s police report states: “I read to Billy Jo the informing
the accused form. At 3:58 AM Billy Jo stated yes when asked if she would consent to an
evidentiary chemical test of her blood.” Dkt. 24, Ex. 2, at 5. But on the audio recording that
Zibell made, Blaha expressly declined to consent. A reasonable jury could discount Zibell’s
testimony based on the contradictions in the documentary evidence.
Third, there’s Blaha’s conversation with Zibell at the Sauk County Jail. Blaha proposes
as an undisputed fact that: “Zibell told Blaha that he was going to draw her blood even though
she did not consent to it.” Dkt. 26, ¶ 14. Blaha relies on her deposition testimony to support
her contention that she expressly declined to consent to the blood draw. Here is the pertinent
excerpt from that testimony:
Q: Do you recall specifically being asked [whether you would
consent to the blood draw by Sherman]?
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A: No. All I remember is being told that I had to.
Q: Okay. And who told you that?
A: Zibell.
Q: Okay. And when did he tell you that?
A: He said that I was going to get my blood drawn. And I said,
“No. I told you no. I don’t like needles, and I told you, no, I would
not.”
Q: And when did that conversation occur?
A: When I was in a holding cell.
Q: Okay.
A: And he said, “Yes, you are because I have it on a recording.”
But on the recording you can hear clear as day I said no because
I don’t like needles
. . .
Q: Do you recall telling anyone on December 27th of 2021 that
you did not consent to the blood draw other than Officer Zibell?
A: I was yelling out the holding cell door saying, “I did not tell
you that you could take my blood.”
Q: Okay. And when would you have been doing that?
A: When he said that I was going to get my blood taken.
Q: Okay. So you would have been yelling that before the blood
draw?
A: [Zibell] came by and said I’m getting my blood drawn. I said,
“No you’re not. I told you no. I don’t like needles. And I did not
consent.”
Q: Okay. And then at that point you were yelling out the cell?
A: I said, “I did not say I could get my blood taken. I told him
no.”
Q: Okay. And that was before the blood draw; is that correct?
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A: Yes.
Dkt. 13 (Blaha Dep. 35:17–37:12).
Defendants purport to dispute Blaha’s proposed fact. Citing the same portion of Blaha’s
deposition testimony, they state:
The proposed fact is not supported by the cited documents and
therefore it must be disregarded pursuant to FRCP 56(c). It is
undisputed that Blaha so testified; however, the cited testimony
does not support that Deputy Zibell was going to draw her blood
even though she did not consent.
Dkt. 26, ¶ 14. But defendants submit no evidence contradicting Blaha’s testimony about her
conversation with Zibell, so the court considers its factual content to be undisputed. A
reasonable jury could find that while Blaha was detained at the Sauk County Jail she reiterated
her refusal to consent to a blood draw.
One final point on the issue of consent. Zibell stood in the room and watched the blood
draw occur. It is undisputed that “Blaha did not refuse Paramedic Sherman’s request to conduct
a blood draw,” Dkt. 25, ¶ 36, and that “Blaha cooperated with Paramedic Sherman and the
blood draw,” id., ¶ 38. But a reasonable jury could infer that Blaha was merely acquiescing to
Zibell’s authority, and mere acquiescence is not consent. See Schneckloth, 412 U.S. at 233;
United States v. Nafzger, 965 F.2d 213, 217 (7th Cir. 1992) (per curiam).
C. Defendants’ motion to supplement the record
After the parties completed summary judgment briefing, defendants moved for leave to
file supplemental evidence. Dkt. 28. Specifically, defendants want to supplement the summary
judgment record with phone calls that Blaha made while detained at the Sauk County Jail. In
these calls, Blaha can be heard saying, “I made them take my blood here,” and “I had them
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take my blood.” Id., ¶¶ 7–8. Defendants contend that the calls demonstrate that Blaha
consented to the blood draw. See id.
After Blaha’s July 9, 2025, deposition, defendants’ counsel sought and acquired
recordings of her jail calls, which demonstrates counsel’s awareness of the potential relevance
of the calls. See id., ¶¶ 1–4. Defendants reviewed the calls Blaha made to her mother, apparently
finding nothing of relevance. Id., ¶ 6. After they filed their summary judgment reply brief on
September 8, counsel reviewed additional calls and discovered the phone calls at issue. Id., ¶ 9.
Counsel doesn’t say when they sought or acquired the recordings of the jail phone calls, an
important omission for a motion seeking to submit late evidence. But the court infers that
counsel had the recordings in time to use them to support its summary judgment briefing if
only counsel been more diligent in reviewing them. The court will deny defendants’ motion for
leave to file supplemental summary judgment evidence.
Even if the phone calls were properly before the court, the court would conclude that
Blaha’s statements on the recordings are not clear evidence that Blaha consented to the blood
draw. So, even with this evidence, whether Blaha consented to the blood draw is genuinely
disputed, precluding summary judgment.
ORDER
IT IS ORDERED that:
1. 	Defendants Sauk County and Blake Zibell’s motion for summary judgment,
Dkt. 15, is DENIED.
2. 	Defendants’ motion for leave to file supplemental evidence in support of their
summary judgment motion, Dkt. 28, is DENIED.
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3. 	The case will proceed to trial on Blaha’s Fourth Amendment unreasonable search
claim under 42 U.S.C. § 1983.
Entered December 18, 2025.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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